Sunday, September 15, 2013

The question remains: Who speaks for the victims?

The Kenyan cases were forced on the Court by America and European countries with a view to determining the political destiny of the country post-Kibaki. ~ Ahmednasir Abdullahi, Sunday Nation (15/09/13)

It is very easy to re-write history; all one must do is to ignore facts on the ground because the human memory is fickle and easily manipulated in an age of twenty-four hour news cycles. The trope that Barack Obama and his surrogates in the European Union engineered the indictments of the President and Deputy President, before they were elected, has gained currency, even among the ranks of those who should know better, including Mr Abdullahi.

When analysing the first day of the trial of the Deputy President, Ahmednasir Abdullahi continues to peddle the notion that had it not been for the interventionist foreign policy intervention of the United States and the EU regarding the political environment once Mwai Kibaki retired, Messrs Kenyatta and Ruto would not be facing charges at the International Criminal Court. This is the principle political plank of the President and Deputy President in their ongoing post-election war with the former Prime Minister. And it is wrong.

In case Mr Abdullahi has forgotten, the sequence of events went something like this: in 2004/05, Kenya acceded to and ratified the Rome Statute. While the treaty was an American brainchild, Kenya did not have a gun figuratively pointed at its head to accede to or ratify the treaty. Next came the ill-fated referendum; Mwai Kibaki and Kiraitu Murungi decided to fiddle with the draft Constitution and submit it to a referendum. Raila Odinga, Uhuru Kenyatta, William Ruto and Kalonzo Muyoka, and a coalition known as Orange, campaigned against and defeated the draft Constitution at the referendum.

In 2007 President Kibaki and Martha Karua, his justice minister, unilaterally appointed members of the Electoral Commission of Kenya to replace others who had retired. They did so knowing full well it would raise questions about the President's dedication to free or fair polls. Uhuru Kenyatta abandoned his second attempt at the presidency and supported Mr Kibaki's tainted candidacy. Mr Ruto, who had supported Uhuru Kenyatta in 2002, was firmly in Mr Odinga's camp and he helped bring the vast vote-basket of the Rift valley to Mr Odinga's side. When the final tally was controversially announced by the late Samuel Kivuitu, Mr Odinga, with Mr Ruto by his side, called for "mass action, peaceful mass action" to challenge the result. At that moment, all bets were off.

By December 29th of that year, the protests, which had started out peacefully enough, were violently suppressed by Mr Kibaki's security forces under the command of the retired Commissioner of Police, Gen Hussein Ali. On January 3rd, the fight-back began and the protests and counter-protests became more than about the results of the election. Violence engulfed the Rift Valley, the Capital and Western Kenya, including Nyanza. By February, the violence had been violently suppressed and Kenya's "development partners" were calling for negotiations to settle the question of what form the Government of Kenya would take. The African Union first sent former Ghanaian President John Kuffuor to mediate. He was rejected by Mwai Kibaki's boys, including Uhuru Kenyatta. Then they sent the former Secretary General of the United Nationa, Kofi Annan and a specially appointed Panel of Eminent African Personalities, including the rightly sainted Graca Machel.

By the end of April 2008, the teams negotiating on behalf of Mwai Kibaki's PNU and Raila Odinga's ODM had agreed to terms. The agreement became the National Accord and Reconciliation Act, 2008, which was entrenched in the former Constitution. It created the position of Prime Minister and Raila Odinga was appointed to the position by Mwai Kibaki. Of the key lieutenants to the principals who benefitted from the Accord, Uhuru Kenyatta was appointed Deputy Prime Minister, but not William Ruto who felt betrayed.

Under the Accord a Commission of Inquiry was appointed chaired by Philip Waki, a Court of Appeal Judge. It was to inquire into the causes of the violence after the elections and present its findings and recommendations to the President for action. It went beyond its remit. In addition to holding hearings, interviewing witnesses, visiting hotspots and reviewing classified and public documents, it considered Kenya's history of Commissions of Inquiry. In making its recommendations, it invoked Kenya's obligations under the Rome Statute and recommended that a special judicial mechanism be established to deal specifically with the crimes that were committed in Kenya between 27 December 2007 and February 2008. If the government of Mwai Kibaki failed to do so, the Commission had prepared a secret list of persons whom it thought bore the greatest responsibility for the violence, which it handed over to the chief mediator, Kofi Annan, who was to hand it to the Chief Prosecutor of the ICC.

Mwai Kibaki and Raila Odinga favoured the recommendations of the Commission. They tried, three times, to establish the special mechanism recommended by the Commission. On the face of it, Mr Ruto and Mr Kenyatta were foursquare behind the President and Prime Minister. But Mr Ruto could not forgive Mr Odinga for the betrayal of appointing someone he considered his political subordinate as Deputy Prime Minister in his stead. His support for what came to be known as the local mechanism was in word only. He seemed to direct the cohort from the Rift Valley to reject the Hague option. They, led by the likes of Isaac Ruto, were vocal in their support for the Hague option. Their rallying call was, "Don't be vague, go to The Hague!" Within two years they prevailed; Mr Annan handed over the secret list to the Prosecutor of the ICC, Luis Moreno-Ocampo, and he in turn applied to the International Criminal Court for authority to investigate the Kenya situation.

All along, Mr Kenyatta and Mr Ruto must have been confident that as the violence was a about the results of the general election, especially the presidential election, the ICC would either not indict anyone, least of all them , or it would indict the two principals, the President and Prime Minister. Mr Moreno-Ocampo made it clear that should he receive authority to investigate the Kenya situation, he would make Kenya an "example" for the world. This has wrongly been presumed to mean that Mr Moreno-Ocampo had already identified Messrs Kenyatta and Ruto as suspects and conducted his investigations, with the help of dodgy NGO outfits, to confirm his preconceived notion. As with many allegations made during this ordeal, no evidence has been advanced to support this assertion. In the end, Mr Moreno-Ocampo filed charges against six men in two cases, and these were confirmed against four. One person had the case against him withdrawn for lack of evidence and recanting by witnesses.

The role that was played by a State agency, the Kenya National Commission on Human Rights, and the Waki Commission, cannot be gainsaid. The latter's methods and findings were largely accepted by Kenyans; and not until the charges were filed did anyone suggest that the KNCHR had been in cahoots with the US government or the EU. By all reasonable metrics, Kenya willingly and knowingly brought upon itself the uncomfortable spectre of its President and Deputy President standing trial for international crimes at an international court in a foreign country.

This blogger is all for the members of the African Union withdrawing from the Rome Statute, but this should not be done with the aim of protecting African despots and serial abusers of human rights from being held to account. But that seems to be the principle motivator of those calling for the withdrawal of African states from the treaty. Sovereignty, the key buzzword of those calling for withdrawal, is meaningless if it is to be expressed in the slaughter of innocents during political disagreements such as happened in Kenya and none being held to account. Even Mr Abdullahi must admit that thousands of Kenyans were murdered in 2007 and 2008; tens of thousands were maimed, injured and raped; hundreds of thousands were displaced; and many of them lost billions of shillings of their properties. None of the victims has been compensated. The men and women who committed these crimes are yet to face justice in our much-vaunted halls of justice. If there are men and women who plotted the atrocities, they are yet to face justice either. This seems to have slipped the minds of those seeing global political conspiracies in the trials of the President and Deputy Presidents.